Originally published on Forbes.com.
At the risk of making my blog less edifying, I find that I want to make note of a Colorado Supreme Court decision – Colorado Department of Revenue v Creager Mercanitile Co, Inc. It concerns blunts. I believe that I have a sophisticated, intelligent, well educated readership. I mean just consider yourself for example. Nonetheless, many of you probably know little, if anything about blunts. A blunt allows you to be smoking tobacco and marijuana at the same time. The idea is that instead of using paper to roll a joint, you use the tobacco leaf wrapping that would be used for a cigar. Originally people made blunts by cannibalizing cigars, but now blunt wraps are available.
Frankly I have to take my hat off to who ever thought blunts up. Talk about being decadent. The only thing I can think of that tops it is Irish coffee, with really heavy cream and extra sugar. If I ever write a hardboiled detective novel, my protagonist will relax by smoking a blunt while sipping Irish coffee.
Of course, there is a tax issue involved in all this. As you probably know, most states tax tobacco products pretty heavily. The question is whether a blunt wrap is a tobacco product. This burning question had to be decided by Colorado’s highest court.
Definitions
The statutory definition of “tobacco products” include various kinds and forms of tobacco that can be chewed or smoked “in a pipe or otherwise”:
…cigars, cheroots, stogies, periques, granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco, snuff, snuff flour, cavendish, plug and twist tobacco, fine-cut and other chewing tobaccos, shorts, refuse scraps, clippings, cuttings and sweepings of tobacco, and other kinds and forms of tobacco, prepared in such manner as to be suitable for chewing or for smoking in a pipe or otherwise, or both for chewing and smoking, but does not include cigarettes which are taxed separately.
Blunt wraps are not on the list, because they did not exist back in the pioneer days of 1986 when hearty pot smokers had to disassemble cigars, if they wanted to smoke blunts
The product evolved from rolling papers used to make roll-your-own cigars and cigarettes. Traditional rolling papers are sold in a sheath of small, dry papers that are folded together in a pop-up packet and can be pulled out one-by-one. In contrast to traditional rolling papers, Blunt Wraps are made from pulverized, homogenized tobacco leaves mixed with vegetable gum, and contain between thirty and forty-eight percent tobacco.
Blunt Wraps are packaged moist and are individually wrapped around a plastic straw in a sealed container. Before use, the straw is removed from the Blunt Wrap, leaving a pre-formed, small, hollow cigar shell. Like traditional rolling papers, Blunt Wraps are designed to be filled with tobacco, marijuana, or other smoking material and smoked. See generally Redman, How to Roll A Blunt, onWhut? Thee Album (Columbia Records 1992). When smoked, the Blunt Wrap is consumed along with the additional tobacco or other smoking material. (Emphasis added)
Hats Off To Gen X
I’m wondering whether that was the first time a state supreme court has cited a rap album as a source. It is worth noting that Justice Monica Marquez who wrote the opinion was, more or less, on her way to Yale Law School when Redman (Reginald Noble), who is about her age recorded his blunt rolling instructions in 1992.
The Ruling
The appellate court had ruled that blunt wraps were not tobacco products, because they were not suitable for smoking on their own. Judge Marquez and the majority disagreed.
No statutory language supports the conclusion that the shared characteristic of the tobacco products listed is that each is “a focus of consumption.” Rather, as explained above, the catchall category requires a tobacco product to be simply: (1) a “kind” or “form” of tobacco; and (2) prepared in a manner as to be “suitable” for chewing or for “smoking in a pipe or otherwise.” Blunt Wraps are: (1) a “kind” or “form” of tobacco; and (2) prepared in a manner as to be suitable for smoking. Therefore, they fall within the language of the catchall category of section 39-28.5-101(5).
In any event, as discussed above, Blunt Wraps are, in fact, consumed by smoking. Indeed, smokers presumably buy Blunt Wraps—in lieu of traditional, tobacco-free rolling papers—because they prefer to consume the additional tobacco contained in a Blunt Wrap.
So Blunt Wraps will be taxed as tobacco products.
Put That In Your Pipe And Smoke It
Several of the judges dissented finding ambiguity in the statute and following the principle that reviewing courts should construe taxation statutes narrowly in favor of the taxpayer. The dissenters noted that in the district court an attempt had literally been made to smoke a Blunt Wrap in a pipe. That is the first time I have ever conceived of that expression being taken literally.